|
FREQUENTLY ASKED QUESTIONS (FAQs)
The information provided below is of a general nature and may not
apply to any particular set of facts or circumstances. It should
not be construed as legal advice and does not constitute an engagement
of the Law Offices of David M. Kramer or establish an attorney-client
relationship.
The following are Frequently Asked Questions (FAQs) about both immigration
and nonimmigration issues. Like the questions, the answers are general
and should only be considered a starting point for a more specific
and detailed legal analysis of one's individual circumstances.
1. What types of temporary work visas are available?
2. What does the Regular Labor Certification Process
require?
3. What are the criteria for employment-based immigration?
4. Is the National Interest Waiver still available?
5. How much must a foreign national invest in a U.S
business to become eligible to apply for permanent residency?
6. Is marriage to an American citizen the fast-track
to permanent resideny?
7. Can a U.S. citizen relative apply for permanent
residency for me?
8. When is it safe for non-citizen residents to use
public benefits?
1. WHAT TYPES OF TEMPORARY WORK VISAS ARE AVAILABLE?
Specialty Occupations (H-1B)
For Individuals who seek temporary entry into the U.S. in a specialty
occupation as a professional.
Exchange Visitors (J-1)
For foreign students, scholars, experts, medical interns and residents,
and industrial and business trainees to work in the U.S. in government
approved exchange visitor programs in order to do research, or
gain experience in their respective fields.
Treaty Traders (E-1) and Treaty Investors
(E-2)
For owners and key employees of businesses which conduct a substantial
volume of trade between the U.S. and the home country and for
those who invest a substantial amount of capital in the U.S.
Intracompany Transferees (L-1)
For executives, managers or persons with specialized knowledge
who transfer to a U.S. branch, business affiliate or subsidiary
of a foreign company.
Extraordinary Ability Visas (O-1)
For foreign nationals of extraordinary ability in the sciences,
arts, education, business, or athletics to undertake a specific
activity or event in the United
States.
2. WHAT DOES THE LABOR CERTIFICATION PROCESS REQUIRE?
A Labor Certification application may be filed by a U.S. employer
who has made a job offer to a foreign national, if it can be demonstrated
that 1) a valid job exists, and 2) there are no qualified U.S. workers
available to fill the position.
There are two stages to this process. First, is obtaining an approval
on the Labor Certification from the Department of Labor. Second,
is filing a petition for permanent residency using the approved
labor certification as the basis.
To Obtain the Regular Labor Certification
the Following Conditions Must be Met:
· A permanent job-offer without restrictive requirements
that are not usually considered standard to that job.
· If the qualifications for the job are unusually restrictive
the employer will have to prove that it has a legitimate necessity
for the restrictive requirements.
· A statement of qualifications of the alien, with documentation
of experience
· Receiving a salary that meets the prevailing wage for
that job
· A 30-day recruitment period (with both external and in-house
posting).
· Explanation of why qualified U.S. resident candidates
do not fill the employer's job-related needs.
3. WHAT ARE THE CRITERIA FOR EMPLOYMENT-BASED IMMIGRATION?
Not everyone needs to have an immediate relative who is a U.S. citizen
in order to receive preference for a U.S. immigration visa. There
several additional ways to obtain U.S. permanent residency that
depend on your employment. If you can answer yes to any of the following
you may want to consider applying for permanent residency under
one of several employment-based categories:
· Do you have special abilities in the sciences or arts?
· Are you able to contribute significantly to the U.S.
national interest?
· Can you invest a substantial amount in a U.S. business?
· Are you able to perform a job, which requires two years
of training?
· Are you a manager/executive of a U.S. based corporation?
· Are you a professional with at least a bachelor's degree?
Congress has created five employment-based categories, which next
to immediate relatives have preference in immigrating to the United
States.
The First Employment-based Preference
allots 40,000 immigration visas to priority workers who are:
· Aliens of extraordinary ability in the sciences, arts,
education business and athletics (no job-offer or labor certification
required)
· Outstanding professors or researchers with universities
or private employers with established research departments (job-offer
needed but no labor certification required)
· Executives and managers of multi-national U.S. businesses
(no labor certification required)
The Second Employment-based Preference
allots about 40,000 immigration visas foreign nationals who are:
· Advanced degree professionals or aliens of exceptional
ability in the sciences, arts or business whose work in the national
interest (job-offer and labor certification not required); or
· Aliens of exceptional ability in the sciences, arts or
business (job-offer and labor certification required); or
· Advanced degree professionals (job-offer and labor certification
required)
The Third Employment-based Preferences
allots about 40,000 immigration visas to:
· Professionals with bachelor's degrees who do not qualify
for the second preference category (job-offer and labor certification
required)
· Skilled workers filing positions requiring at least two
years of training and experience (job-offer and labor certification
required)
· Unskilled workers (job-offer and labor certification
required)
The Fourth Employment-based Preference
for:
· Ministers and religious workers who demonstrate an affiliation
with an employer or organization
The Fifth Employment-based Preference
for Alien Investors allots 10,000 immigrant visas to investors who:
· Invest a minimum of $500,000 in a new or existing business
that creates jobs in specified low-employment areas (no labor
certification required)
· Invest a minimum of $1 million in a new or existing business
anywhere else in the United States. (no labor certification required)
4. IS THE NATIONAL INTEREST WAIVER STILL AVAILABLE?
A foreign national who applies under this category must show that
he or she will significantly improve the national interest to a
substantially greater degree than a U.S. resident. Recently, the
USCIS raised the standards on determining whether or not a foreign
national's work is in the national interest. The focus has shifted
from showing that the petitioner has and will contine to make significant
contributions to the national interest to showing that he or she
is more likely to do so than a U.S. worker with the minimum qualifications
needed for the job.
With these stricter standards, some people have speculated that
the category is all but dead. However, in the past year, we have
successfully obtained national interest waivers for researchers
through all four USCIS Service Centers. The reason we have been able
to obtain NIWs, when others have not, is because we carefully analyze,
develop and present the foreign national's work in a way that shows
specific benefits to the U.S. national interest. We work closely
with our clients to obtain evidence that explaUSCIS clearly why few,
if any, people are available to do that work. In fact, to us the
higher USCIS standards aren't new--they are what we have been working
with ever since the national interest waiver was first introduced.
5. HOW MUCH MUST A FOREIGN NATIONAL INVEST IN A U.S. BUSINESS
BEFORE HE IS ELIGIBLE TO APPLY FOR PERMANENT RESIDENCY?
There are two levels of investment at which a foreign national will
qualify to petition for permanent residency. In the first, a foreign
national must invest $1,000,000 in a new or commercial enterprise
that will benefit the U.S. economy and create at least ten full-time
employment positions for lawful U.S. workers (excluding the immediate
family member of the investor).
The investor may also invest at least $1 million to expand an existing
business, but such an investment must result in a substantial change
in the enterprise's net worth. It must also create at least ten
new jobs for U.S. residents.
In the second, an investor need only invest $500,000 in a new or
existing business if the commercial enterprise is in a rural or
a targeted high unemployment area. In both subcategories, the foreign
national investor must be actively involved in the management of
the business, either through the exercise of day-to-day managerial
control, or through policy formulation.
6. IS MARRIAGE TO AN AMERICAN CITIZEN THE FAST-TRACK TO PERMANENT
RESIDENCY?
Marriage to a U.S. citizen is often considered to be the fastest
way to obtain permanent residency. However, the USCIS looks closely
at these petitions to see if the marriage can be considered bona
fide or if it has been entered into for the purposes of getting
a green card. If the latter is found the immigration petition is
denied and the non-U.S. spouse will be required to leave the country
immediately. Fortunately, by far the greater number of spousal petitions
are approved.
Other factors that determine the legitimacy of the marriage are
that:
1. The marriage must be valid at the time it was entered into.
(ie. each party was legally able to marry)
2. The marriage must still be in existence
The other criteria that must be met is that the foreign spouse
of the U.S. citizen must be eligible to be admitted to the United
States. This means that they are not in deportation proceedings
or other limits which may rule out entry into the U.S.
7. CAN A U.S. CITIZEN RELATIVE APPLY FOR PERMANENT RESIDENCY
FOR ME?
Most people are aware that having a U.S. relative gives one a basis
for immigrating to the United States. However there are various
categories of family-based immigration and each falls into an order,
which Congress has determined is preferred for immigration. There
are four categories under which an individual can obtain permanent
residency through relatives. They are:
1. First Preference-Unmarried sons and daughters of US citizens
(23,400 per year, plus unused visas from the fourth Preference);
2. Second Preference- Spouses and unmarried children of U.S. permanent
residents (114,000 per year, plus excess over 226,000 the floor
for family based immigration, plus unused visas from the first
Preference) ;
3. Third Preference-Married sons and daughters of U.S. citizens
(923,400 per year, plus unused visas from the first and second
Preferences);
4. Fourth Preference- Brothers and sisters of U.S. citizens (65,000
per year, plus unused visas from the first second and third Preferences).
Family sponsored immigration has an overall quota of 480,000 visas
per year, less immediate relatives (who are exempt from numerical
limitations), plus unused employment based Preferences.
8. WHEN IS IT PERMISSIBLE FOR NON-CITIZEN RESIDENTS TO USE PUBLIC
BENEFITS?
What is "public charge"?
"Public charge" is a term used by the US Citizendhip and Immigration Services
(USCIS) and consular officers. The term describes
persons who cannot support themselves and who depend on public
benefits like CaIWORKs or SSI. Depending on your immigration status,
the USCIS can refuse to let you enter the U.S., reenter the U.S.,
or become a permanent resident, if they think you will not be
able to support yourself and that you will rely on public benefits
in the future.
How does the USCIS decide whether or not
someone is a public charge?
The USCIS should look at your entire life situation to decide if
you are likely to rely on public benefits in the future. Although
the USCIS can look at whether you used benefits in the past, the
USCIS cannot make its decision based only on what happened in the
past. The USCIS should look at all of the following factors together
to decide whether you might become a public charge in the future:
· Age (are you elderly or very young, and likely to need
support?)
· Health (do you have an illness that requires costly treatment?)
· Income (are you poor with no assets?)
· Family size (do you have a large family to support?)
· Education and skills (are you working now or can you
easily find a job?)
The USCIS may ask you questions to see if you are likely to rely
on public benefits in the future. It is important that you tell
the USCIS any reasons why you should not need public benefits, in
the future. For example, if you are elderly, but you have family
in the U.S. with enough money to support you, you should tell
that to the USCIS. Or, if you have a special skill that will get
you a good job in the U.S., you should give that information to
the USCIS.
I am applying for a green card. Can the
USCIS refuse to give me a green card because they think I might use
public benefits one day?
Yes. If the USCIS thinks you cannot support yourself and that you
will rely on public benefits in the future, it can refuse to give
you a green card - even if you are not using public benefits now.
See the question above for some hints on how you might prove that
you will not rely on public benefits in the future.
If my relative sponsors me to live in
the United States, will this help me prove to the USCIS that I will
not need benefits in the future?
Most people who are applying for a green card must have a sponsor
who can show he or she has enough money to support you (at 125%
of the poverty level). Your relative will have to sign a legal
document (called an "affidavit of support") promising
that he or she will support you. This affidavit, signed by your
relative will help convince the USCIS that you will not rely upon
public benefits in the future. The affidavit also requires a sponsor
to pay back the cost of some benefits programs, if an immigrant
receives them in the future.
I have my green card. Can the USCIS deport
me if they think I will rely on benefits?
No, the USCIS cannot deport you for using public benefits that
you qualify to receive. But in very rare cases the USCIS can deport
you for being a "public charge." The chance of being
deported as a public charge is very small. To risk being deported,
you would have to do all of the following things:
· become dependent on public benefits within your first
5 years of getting your green card, and
· receive public benefits for reasons that existed before
you got your green card (for example, an illness you already had),
and
· receive a notice from the government agency that gave
you the benefits, telling you to repay the benefits (this is rare
because the use of most benefits does not create a debt), and
· You refuse to repay the benefits after you receive notice
to do so.
I have my green card and I get public
benefits. Can I travel outside the United States?
If you are a legal resident who gets public benefits right now,
you should not travel outside the U.S. for more than 6 months.
If you are gone for more than 6 months, the USCIS can ask you questions
about whether you are likely to become a public charge, and may
not let you re-enter the country. If you are outside of the U.S.
for less than 6 months, in most cases the USCIS cannot stop you
from re-entering the country based on being a public charge.
I have my green card and get public benefits.
Can I still receive my benefits while I am out of the country?
If you plan to be outside of the country for more than a few
days, you should check with your welfare worker. You may have
to stop your benefits while you are gone. If you continue receiving
public benefits while you are outside of the U.S., this may not
be proper. If you receive benefits improperly, it could also hurt
your chances of becoming a U.S. citizen.
When I return from a trip, can the USCIS
make me pay back Medi-Cal that I used before I left?
No, the USCIS is not supposed to ask you to pay back benefits.
If you are at the airport or the border and the USCIS ask you to
pay back benefits, you should get legal help immediately. The
Medi-Cal agency cannot ask you to repay benefits unless you receive
benefits improperly (for example, if you were not really living
in California but claimed to be a resident, or if you did not
tell your welfare about all of your income.)
What kind of benefits might cause a public
charge problem for me?
It is not clear yet which benefits may cause you problems. The
USCIS is supposed to consider only benefits meant for people who
cannot support themselves. If you use cash welfare, such as SSI
or Cal WORKs, you will probable have more problems than if you
use non-cash programs, like food stamps, disaster benefits, or
emergency MediCal. Even if you used cash welfare in the past,
you can show that you will not need it in the future (for example,
because you have a job now.)
What if I used WIC, Medi-Cal, or Healthy
Families?
The government has said that using WIC will not cause a problem.
If you have used Medi-Cal or Healthy Families in the past, be
prepared to show that you will not need to use cash welfare in
the future. The USCIS is supposed to look at your whole situation
when they decide if you might be a public charge in the future
(see the second question on the first page).
I am a refugee. Will I have problems if
I use public benefits?
No. The public charge law does not apply to refugees or to persons
granted asylum in the U.S.
I am a legal permanent resident and I
get SSI or other benefits. Will this stop me from becoming a U.S.
Citizen?
No. If you are properly receiving public benefits you cannot
be denied citizenship for receiving benefits. But if you ever
got public benefits you were not supposed to receive, the USCIS
may decide that you do not have "good moral character,"
and you could have trouble becoming a U.S. citizen. If you think
that you improperly received benefits, talk to an immigration
lawyer or community agency before you apply for citizenship.
I am a U.S. Citizen. Will I lose my citizenship
if I get benefits?
No, you cannot lose your citizenship if you get benefits. Once
you become an U. S. citizen, the USCIS cannot deport you for public
charge reasons and they must always let you re-enter the U. S.
after a trip to another country.
top of page
|
